Sivarama Iyer v. Pichandi Pillai — 1951 DIGILAW 119 (KER)

Judgment :- The defendant in O.S. No. 986 of 1120 of the Padmanabhapuram Munsiff's Court is the Revision Petitioner in this case. The revision is from an order in execution. The decree-schedule properties were sold in court auction for the decree amount on 5.4.1124. The decree-holder himself purchased the properties for Fs. 5731 7/16 (Rs. 804) which was the decree-debt. A petition was filed by the defendant under O.21 R.87 C.P.C. (Tr.) to set aside the sale on the ground of material irregularity and undervaluation. According to the defendant the properties are worth Rs. 30,000. A commission was issued to ascertain the value of the properties and according to the Commissioner's report the properties are worth Rs. 15,300. There is a prior charge of about Rs. 7,000. The petition to set aside the sale was posted for evidence on 19.6.50. On that day the defendant offered to deposit the auction amount and interest within 8 months in two instalments. The decree-holder accepted this offer. The court thereupon passed an order on 19.6.50 itself directing the defendant to pay the sale amount and interest in 2 equal instalments within 8 months and also ordered that the 1st instalment should be paid on or before 19.10.50 and the 2nd instalment on or before 19.2.51. It was also provided in the order that if any instalment was defaulted the petition to set aside the sale would stand dismissed and the sale confirmed that if both the instalments were duly paid the petition would stand allowed and the sale cancelled. 2. No amount was paid on or before 19.10.50 as directed in the order and therefore the court on that day itself dismissed the petition under O.21 R.87 and confirmed the sale. On 10.12.50 the defendant filed a petition to review the order dated 19.6.50 and to set aside the order dated 19.10.50 confirming the sale. 3. 2. No amount was paid on or before 19.10.50 as directed in the order and therefore the court on that day itself dismissed the petition under O.21 R.87 and confirmed the sale. On 10.12.50 the defendant filed a petition to review the order dated 19.6.50 and to set aside the order dated 19.10.50 confirming the sale. 3. The main grounds alleged in the affidavit filed along with the petitioner that the defendant had not agreed on 19.6.50 to deposit the Ist instalment on 19.10.50, that the direction in the order dated 19.6.50 for deposit of the 1st instalment on 19.10.50 was against the terms of the compromise agreed to by him, that he was not aware of such a direction in the order, that time was not the essence of the contract between the parties, and that he was prepared to pay the whole amount. He therefore prayed that he should be allowed to deposit the amount and to have the sale set aside. The decree-holder objected to this. The lower court rejected the petition of the defendant on the ground that he had submitted to the order of the court fixing the dates of payment, that the petition to review the order dated 19.6.50 was out of time and that as long as that order stood the petition to set aside the sale was not sustainable. This Revision Petition is from that order. 4. The questions that arise for consideration in this Revision are (1) whether the order of the lower court dated 19.6.50 directing the defendant to pay the 1st instalment on 19.10.50 and providing for the dismissal of the petition under O.21 R.87 in case of default of payment within that time was one passed without jurisdiction, (2) whether the defendant was bound to have that order vacated and (3) whether the petition to review that order filed after three months is maintainable. 5. With regard to the first point it will be seen that the defendant had not agreed to pay the amount in 2 equal instalments and to pay the 1st instalment on 19.10.50. His undertaking was only to pay the whole amount within 8 months and that in 2 instalments. 5. With regard to the first point it will be seen that the defendant had not agreed to pay the amount in 2 equal instalments and to pay the 1st instalment on 19.10.50. His undertaking was only to pay the whole amount within 8 months and that in 2 instalments. It was also argued for the Revision Petitioner that by this undertaking he had not agreed to his petition being dismissed in case he defaulted payment of the amount within 8 months in two instalments. But I think that such an agreement is implied in the undertaking of the defendant. Otherwise there will be no meaning in the undertaking to pay the amount within a particular time and the decree-holder agreeing to it. But the defendant had not agreed to pay the amount in two equal instalments and to pay the 1st instalment on 19.1050 and to have his petition dismissed in case the 1st instalment was not paid on or before that date. Therefore the direction in the order of the court for payment of half the amount on or before 19.10.50 and the provision for dismissal of the petition in case of default of that payment are not in terms of the agreement made by the defendant. If the court proposed to dispose of the petition to set aside the sale, not on the merits, but on the basis of the compromise entered into by the parties the order should have been in accordance with the terms of the compromise. 0.23 R.3 relating to compromise of suits is to the following effect:- "Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit." It is therefore clear that if the court accepts the agreement the decree should be in accordance with the terms of the agreement. 0.23 R.5 C.P.C. (Tr.) provides that the provisions of 0.23 shall not apply to proceedings in execution. 0.23 R.5 C.P.C. (Tr.) provides that the provisions of 0.23 shall not apply to proceedings in execution. The Patna High Court has held that an application to set aside a sale under 0.21 R.90 (Indian C.P.C.) is not a proceeding in execution and that a compromise arrived at between the parties that on the judgment-debtor paying a certain sum by a particular date the court sale should be set aside may therefore be recorded under R.3 (1921 (6) Pat. LJ 253). It is however not necessary to decide in this case whether the court had jurisdiction to dispose of the petition to set aside the sale on the basis of the agreement entered into by the parties. So long as the court has accepted the agreement and has proceeded on the basis of it the court was bound to pass an order in terms of the agreement. If the agreement is not lawful the court is not bound to accept it. But if a lawful agreement is accepted the decree or order should be in accordance therewith. The court will be acting without jurisdiction if it embodies in the order any provision not agreed to by the parties. To that extent the order should be deemed to be one passed without jurisdiction. In (1895) 2 Ch. 273 (Huddersfield Banking & Co. v. Lister) it was observed by Kay, L.J. that a consent decree or order is only the order of the court carrying out the agreement between the parties and that a "consent order is a mere creature of the agreement." This observation was quoted with approval by Mukkerji, C.J. in AIR 1921 Cal. 356 (Naudarpa Nag v. Banwari Lal Nag). In ILR 43 Cal. 217 (Kusodhaj Bhukta v. Brajamohan Buktha) Jenkins, C.J. has observed thus: "It is well settled that a contract of the parties is none of the less a contract because there is superadded to it the command of the Judge. It still is a contract of the parties, and as the contract is capable of being rectified for an appropriate mistake, so as the necessary consequence, is the decree which is merely a more formal expression given to tha contact." This decision was followed in AIR 1926 Nag. 20 (Mira Moti Ju Deo v. Mt. Janki). It still is a contract of the parties, and as the contract is capable of being rectified for an appropriate mistake, so as the necessary consequence, is the decree which is merely a more formal expression given to tha contact." This decision was followed in AIR 1926 Nag. 20 (Mira Moti Ju Deo v. Mt. Janki). It was held in that case that a compromise incorporated into a decree under 0.23 R.3 only represents the contract between the parties with an order of the court supderadded to it and that therefore the parties cannot avail of any provision contained in the decree passed in pursuance of the compromise, but not contained in the compromise itself. To the same effect is the decision in AIR 1930 Pat. 234 (Susadhar Gangali v. Raghab Singh). In 26 TLJ 971 (Thoma Cherian v. Oommen Thommi) the Travancore High Court held that a compromise decree may be treated as a contract between the parties with all the incidence of a contract, that it stands on no higher footing and that such decree can be corrected or rectified if it does not represent the real contract between the parties. 6. In the light of these rulings and the provision in O.23 R.3 C.P.C., I am of opinion that so long as the defendant had not agreed to pay half the auction amount and interest on or before 19.10.50 and to have his petition dismissed in default of payment of that amount within that date, the lower court acted without jurisdiction in directing him to deposit that amount on or before 19.10.1950 and in ordering that the petition would stand dismissed if the amount was not paid within that date. If the court acted without jurisdiction in embodying in its order provisions not agreed to by the defendant he was not bound to have the order vacated by means of appeal of review. 7. In this view of the matter the 3rd question, namely, whether the petition filed by the defendant to review the order dated 19.6.50 more than three months from the date of the order is maintainable does not arise for consideration. In the petition filed by the defendant on 15.12.1950 he had offered to deposit the whole amount but the decree-holder was not prepared to accept the amount and to have the sale set aside. In the petition filed by the defendant on 15.12.1950 he had offered to deposit the whole amount but the decree-holder was not prepared to accept the amount and to have the sale set aside. This petition was filed within 8 months from the date of the 1st order. The offer to pay the whole amount was repeated by the defendant in the revision petition also which was filed on 1.2.1951. The period of 8 months had not expired on that date also. In the circumstances it cannot be said that the defendant has wilfully defaulted to make the payment as undertaken by him. But in view of the fact that he has not as yet deposited the amount in court I think that he is not entitled to have the sale set aside merely because he has offered to make the payment. 8. In the circumstances the proper thing to do will be to direct the lower court to dispose of the petition to set aside the sale on the merits. The order of the lower court dated 19.6.1950 and that dated 19.10.1950 dismissing the petition under O.21 R.87 and confirming the sale as also the order dated 17.1.1951 dismissing C.M.P. 11922 filed by the defendant are hereby set aside and the lower court is directed to dispose of the petition under O.21 R.87 on the merits. The Revision Petition is allowed in the manner stated above. There will be no order as to costs.